On Jun 26, 6:29 am, "Alan" <alanb_lano2s...@yahoo.com> wrote:
[Custom printed shirts ordered by OP's customer HHH were not delivered in time for an event, where on-time delivery was an express condition of the contract]
> the legal question is this. Suppose HHH refused to pay
> for the t-shirts
Upon the stated facts it seems pretty clear to me that HHH doesn't owe OP's compnay for the late-delvered shirts. They agreed to pay for on-time shirts, not for late shirts, no matter what the cause; the shirts were worthless to HHH after the event was over. OP's job, if he wanted his company to get paid, was to make sure 6-ways-to-Sunday that whoever was actually delivering and picking up the shirts didn't drop the ball. OP in fact mentions quite a few things his company could have done, but didn't, to keep tabs on things and make sure these other foax, who were actually handling the package, knew the consequences and didn't blow OP's company's chances to make this sale by failing to deliver on time.
> and also wanted to sue someone because their press
> conference failed to the degree that the shirts didn't appear in press
> coverage,
That's more of a stretch, since it's harder to prove that kind of damages, but theoretically, if the customer can reasonably quantify such a consequential loss, they can recover damages for it.
> would they sue us or Jane Doe?
Potentially both, but query, what duty did Jane Doe have to HHH? What HHH would probably do is sue OP (if they go that far, and don't simply refuse to pay), and then OP could turn around and implead Jane Doe (or her employer, the event venue) as a third party defendant since she is the one who in actuality failed to be there when she promised OP she would be, to receive the package.
But query: What consideration if any did OP pay Jane Doe for her promise to get to the office at 7 am to accept this package? Was there a separate deal between OP's company, and Jane Doe, to do this, or was it something in the deal between HHH and Ms. Doe's employer? Or did everybody just assume it was "part of her job" in representing the hotel or wherever this conference was held? There's lots of ways the facts could shake out, and as usual, "it depends."
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Wednesday, August 15, 2012
Utility power surge - document subpoena
On Jun 26, 6:29 am, Herbert Kanner <kan...@deadspam.com> wrote:
[OP is suing his city-owned utility provider in Small Claims over a power surge exceeding the capacity of OP's surge protector, that destroyed his computer and some other equipment.]
I assume your suit alleges negligence on the part of the City-owned utility: to wit, that they failed and omitted to take steps that any reasonably prudent utility would have done, to prevent overvoltage damage from occurring to customers' belongings due to controllable and foreseeable power surges when power was restored after a storm. That would require proof, on your part, of WHAT a reasonably prudent utility should have done under those circumstances.
You may also have a breach-of-contract claim, which would be simpler to prove, IF there was some promise or guarantee in your terms of service with the utility regarding the maximum voltage they would ever send over your lines. All you would have to prove is that they sent a surge in excess of that amount and that it caused you damage. The problem is, I doubt very much that any sensible utility would include such a clause in its contract with you, firstly because THEY are the one drafting the language and they are not going to be stupid enough to include something so one-sidedly AGAINST their own interests, and secondly because since so many of the potential causes for damaging surges are out of their control, I doubt they could protect you fully even if they tried. Frex, how do you know the damaging surge didn't happen BEFORE the power went out, caused by the same lightning strike ("Act of G-d") that also cut the power and required it to be restored? Or due to another lightning strike AFTER power was restored?
A third possibility is a statutory liability claim, if you have laws in your area that make the utility strictly liable to customers when this happens. I doubt you do, but at least it's worth looking into.
> [Others] have advised me to subpoena maintenance records for the past couple of
> years. I assume these should be records indicating what actions were
> taken to prevent excessive voltage peaks on resumption of power and, if
> available, the actual voltages that occurred.
Don't "assume" that's what you'll get, if all you ask for is "maintenance records"; if that's what you want, that's what you have to ask for: "All records showing [insert your quote here]" (whatever it is you want to see if they show). In addition, you can ask a separate request for "_All_ maintenance records for the past 2 years", Of course, the city may come back in response and say there are no such records, and what do you do then?
> This could demonstrate
> that the surge on Dec. 26/27 was abnormal.
It could, but I'm thinking even if it's "abnormal" that still doesn't necessarily mean the city is liable for it. The pertinent question is whether the city took the steps that a reasonably prudent utility supplier would have taken, i.e. the steps widely recognized in the industry as reasonably necessary, to prevent or limit such surge damage. I'm not seeing how you could get any of that into evidence, or make it have any meaning to the judge, without expert testimony. Do you have an electrician, or perhaps a line employee of a rival utility, who has specialized knowledge of that subject beyond that of a well informed ordinary person (the legal definition of an "expert"), and who could come to court and testify for you to give his OPINIONS about what a reasonable utility supplier _should_have done under the circumstances, and which your (documentary) evidence presumably will show they didn't do (or at least didn't write down, which in law is practically the same thing)? The court ordinarily will NOT allow opinion testimony about what someone should or shouldn't have done, except from a qualified expert, even in small claims court.
> I have two problems with this. In the first place, a telephone "help"
> line person told me that subpoenaed documents would not go to me, but
> would go directly to the court.
WHOSE "help" line? The court clerk's? Then believe what they say. The utility's? See below, and go find out for yourself what their records show.
> Does that mean that I would not get to
> see them prior to the court appearance?
Yes, probably you won't get to see the SUBPOENAED set of documents before trial. I am not a CA lawyer and can't speak for CA, but most small claims courts nationwide have limited or no pre-trial "discovery" available to the parties to let you find out before trial what info is known to the other side. Both sides just come into court and tell their story, with or without additional witnesses, and bringing whatever documents they already have that they think can help prove their case.
Perhaps what you need to do, if it's not too late, is bump your case up to the next higher level court, where you might have some discovery procedures available. Sometimes small claims court is not appropriate for hard-to-prove claims even if the amount in controversy is within their jurisdictional limits, and you need to go to a higher court just to get the procedural tools available to you there. Here in MD, frex, we can sue in small claims for any amount from $1-$5000, but if so, we get no pretrial discovery; yet if we sue for any amount from $5001-$10,000, the same case will be heard in the very same court but under a different set of rules that allows us to ask up to 15 written "interrogatory" questions to the other side and to require pre-trial production of documents known to the other side that are relevant to the case.
> The second problem is: how do I
> find out exactly to whom this subpoena should be served?
That's the easy part; as a citizen and a customer, you are entitled to call around and find out which office at the city-owned power company is in charge of those records. If they are in fact public records, you can perhaps go down to their office yourself, and look at them there, or ask them to make you a copy (at a price). That is a form of "informal" discovery that you can try, even in a small claims case, and would let you see the documents in advance of trial. Then, AFTER* you have done that, you have the court issue a formal subpoena, listing those documents, and have it served on the attorney for the city who has entered an appearance in your case, directed to the "custodian of records" for that particular bureau of his client the city: e.g. address the subpoena to
"Custodian of Records, Dept. of Public Works, City of Podunk" (or whatever the correct legal name is for your city, and for that department).
*If you subpoena the documents BEFORE you try informal discovery, you may find out to your chagrin that the particular files you're looking for are temporarily unavailable for public perusal because "we sent those files down to the legal department to comply with a subpoena". You will have shot yourself in the foot, and then you will NOT be able to look at them in the public-access records office, and won't see them at all until you get the subpoenaed documents produced to you at trial.
It's probably also most appropriate to actually serve your custodian-of-records subpoena on the City attorney in your case, since it addressed to his client and you should not be contacting his client directly except to the extent and in the manner that any ordinary citizen not involved in a lawsuit also has the right to do so. The attorney will then make sure that the appropriate office locates and produces copies at trial of the documents you requested, which may or may not be the same ones you found by going down to their office and looking. It would also certainly be a good idea to give the attorney a heads-up by providing _him_ with copies of any documents you previously got from your personal search of the utility's records office, and seeing if he would just stipulate to admit those at trial without having to jump thru the hoops of a formal subpoena. If you keep the attorney in the dark, don't be surprised if the stuff they produce at trial is quite different from the stuff you got by looking at the records yourself, even if they are acting in good faith; unless it is completely clear that there is only one place they could look and only one identifiable file or set of files they should produce. He can't read your mind, he can only read and interpret what you actually ask for, which may not be the same as what you really want, and thus may be different from the stuff you looked at and copied on your own. Good luck,
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
[OP is suing his city-owned utility provider in Small Claims over a power surge exceeding the capacity of OP's surge protector, that destroyed his computer and some other equipment.]
I assume your suit alleges negligence on the part of the City-owned utility: to wit, that they failed and omitted to take steps that any reasonably prudent utility would have done, to prevent overvoltage damage from occurring to customers' belongings due to controllable and foreseeable power surges when power was restored after a storm. That would require proof, on your part, of WHAT a reasonably prudent utility should have done under those circumstances.
You may also have a breach-of-contract claim, which would be simpler to prove, IF there was some promise or guarantee in your terms of service with the utility regarding the maximum voltage they would ever send over your lines. All you would have to prove is that they sent a surge in excess of that amount and that it caused you damage. The problem is, I doubt very much that any sensible utility would include such a clause in its contract with you, firstly because THEY are the one drafting the language and they are not going to be stupid enough to include something so one-sidedly AGAINST their own interests, and secondly because since so many of the potential causes for damaging surges are out of their control, I doubt they could protect you fully even if they tried. Frex, how do you know the damaging surge didn't happen BEFORE the power went out, caused by the same lightning strike ("Act of G-d") that also cut the power and required it to be restored? Or due to another lightning strike AFTER power was restored?
A third possibility is a statutory liability claim, if you have laws in your area that make the utility strictly liable to customers when this happens. I doubt you do, but at least it's worth looking into.
> [Others] have advised me to subpoena maintenance records for the past couple of
> years. I assume these should be records indicating what actions were
> taken to prevent excessive voltage peaks on resumption of power and, if
> available, the actual voltages that occurred.
Don't "assume" that's what you'll get, if all you ask for is "maintenance records"; if that's what you want, that's what you have to ask for: "All records showing [insert your quote here]" (whatever it is you want to see if they show). In addition, you can ask a separate request for "_All_ maintenance records for the past 2 years", Of course, the city may come back in response and say there are no such records, and what do you do then?
> This could demonstrate
> that the surge on Dec. 26/27 was abnormal.
It could, but I'm thinking even if it's "abnormal" that still doesn't necessarily mean the city is liable for it. The pertinent question is whether the city took the steps that a reasonably prudent utility supplier would have taken, i.e. the steps widely recognized in the industry as reasonably necessary, to prevent or limit such surge damage. I'm not seeing how you could get any of that into evidence, or make it have any meaning to the judge, without expert testimony. Do you have an electrician, or perhaps a line employee of a rival utility, who has specialized knowledge of that subject beyond that of a well informed ordinary person (the legal definition of an "expert"), and who could come to court and testify for you to give his OPINIONS about what a reasonable utility supplier _should_have done under the circumstances, and which your (documentary) evidence presumably will show they didn't do (or at least didn't write down, which in law is practically the same thing)? The court ordinarily will NOT allow opinion testimony about what someone should or shouldn't have done, except from a qualified expert, even in small claims court.
> I have two problems with this. In the first place, a telephone "help"
> line person told me that subpoenaed documents would not go to me, but
> would go directly to the court.
WHOSE "help" line? The court clerk's? Then believe what they say. The utility's? See below, and go find out for yourself what their records show.
> Does that mean that I would not get to
> see them prior to the court appearance?
Yes, probably you won't get to see the SUBPOENAED set of documents before trial. I am not a CA lawyer and can't speak for CA, but most small claims courts nationwide have limited or no pre-trial "discovery" available to the parties to let you find out before trial what info is known to the other side. Both sides just come into court and tell their story, with or without additional witnesses, and bringing whatever documents they already have that they think can help prove their case.
Perhaps what you need to do, if it's not too late, is bump your case up to the next higher level court, where you might have some discovery procedures available. Sometimes small claims court is not appropriate for hard-to-prove claims even if the amount in controversy is within their jurisdictional limits, and you need to go to a higher court just to get the procedural tools available to you there. Here in MD, frex, we can sue in small claims for any amount from $1-$5000, but if so, we get no pretrial discovery; yet if we sue for any amount from $5001-$10,000, the same case will be heard in the very same court but under a different set of rules that allows us to ask up to 15 written "interrogatory" questions to the other side and to require pre-trial production of documents known to the other side that are relevant to the case.
> The second problem is: how do I
> find out exactly to whom this subpoena should be served?
That's the easy part; as a citizen and a customer, you are entitled to call around and find out which office at the city-owned power company is in charge of those records. If they are in fact public records, you can perhaps go down to their office yourself, and look at them there, or ask them to make you a copy (at a price). That is a form of "informal" discovery that you can try, even in a small claims case, and would let you see the documents in advance of trial. Then, AFTER* you have done that, you have the court issue a formal subpoena, listing those documents, and have it served on the attorney for the city who has entered an appearance in your case, directed to the "custodian of records" for that particular bureau of his client the city: e.g. address the subpoena to
"Custodian of Records, Dept. of Public Works, City of Podunk" (or whatever the correct legal name is for your city, and for that department).
*If you subpoena the documents BEFORE you try informal discovery, you may find out to your chagrin that the particular files you're looking for are temporarily unavailable for public perusal because "we sent those files down to the legal department to comply with a subpoena". You will have shot yourself in the foot, and then you will NOT be able to look at them in the public-access records office, and won't see them at all until you get the subpoenaed documents produced to you at trial.
It's probably also most appropriate to actually serve your custodian-of-records subpoena on the City attorney in your case, since it addressed to his client and you should not be contacting his client directly except to the extent and in the manner that any ordinary citizen not involved in a lawsuit also has the right to do so. The attorney will then make sure that the appropriate office locates and produces copies at trial of the documents you requested, which may or may not be the same ones you found by going down to their office and looking. It would also certainly be a good idea to give the attorney a heads-up by providing _him_ with copies of any documents you previously got from your personal search of the utility's records office, and seeing if he would just stipulate to admit those at trial without having to jump thru the hoops of a formal subpoena. If you keep the attorney in the dark, don't be surprised if the stuff they produce at trial is quite different from the stuff you got by looking at the records yourself, even if they are acting in good faith; unless it is completely clear that there is only one place they could look and only one identifiable file or set of files they should produce. He can't read your mind, he can only read and interpret what you actually ask for, which may not be the same as what you really want, and thus may be different from the stuff you looked at and copied on your own. Good luck,
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Liability for sale of goods
On Jun 23, 6:58 am, peter <peter.jenni...@gmail.com> wrote:
> I supply goods from Europe into the UK, I'm an agent for various
> Europeans suppliers.
Are you the suppliers' employee, or an independent businessman? In either case, if your relationship as a mere agent to the suppliers (who would be the principal party actually contracting with the buyer to sell the goods) was disclosed to the buyer, you probably do not have any personal liability (under USA law at least) for breach of contract, if your supplier/principal fails to fulfill a proper order from a buyer that they had accepted. However, your supplier would. And if you FAILED to disclose to the buyer that you were only acting as agent for your principal, he could sue the principal AND could also sue you directly, at least under USA law.
Before we get into this, though, why are you asking about this here? Most of the netizens on MLM are in USA. If you really think you need legal advice, you need to ask someone on your side of the pond, especially since it seems to require a knowledge not only of UK law but EU commercial law as well and possibly also the domestic civil law of one or more Continental nations. If you are an employee of the supplier, ask to speak to _their_ legal dept. If you are independent, this is a good time to look around and get yourself a solicitor you can put on retainer to advise your business from time to time. That would be a very good investment and a reasonable cost of doing business.
> I received an order from a UK customer for 1 load
> + 1-2 more. The order was verbal. I agreed this with my supplier.
It sounds possibly as though in your usual practice, a customer's order is not "accepted" until you relay it to the supplier for whom you act as agent, and until that supplier says "yes" to the order. In that case you did nothing wrong, if you relayed each order promptly when it came in. In a rising market, it is the buyer who is out of luck, for not placing a definite order for the extra loads sooner than he did. The question that remains is whether the buyer in fact placed a definite order at the old price for future delivery (and future payment) that was accepted by someone with authority to accept it.
> Then
> a formal order came in for the first load and I passed it on to the
> supplier, they supplied, invoiced directly and were paid in full.
The fact that the supplier invoiced the buyer directly makes me think you are _not_ acting as an independent middleman (distributor, jobber, wholesaler) in this transaction such that you would buy goods on your own account from the supplier at your cost and resell them to your buyer at a (hopefully) higher price, taking your own profit and overhead from the difference. How, indeed, do you get paid for what you do? Do you get a commission on completed sales? A salary? In either event it sounds like it is the supplier, not you, who+ has a contract with the buyer, and that you are working for the supplier and paid by him.
> Then I received a second order. The supplier then said that they had
> run out of goods and hadn't reserved goods as they had never received
> a formal order for more than one load! It's a steeply rising market,
> so the customer can't buy elsewhere at the same price and is
> understandably angry. They say that they will look to force me to
> supply two more loads at the same price, but can they?
That depends on all kinds of facts not apparent from your post, and is why you should either consult your own solicitor promptly or, if you are an employee-agent of the supplier, notify the supplier that the buyer is making this claim and let them (and their legal dept.) take care of it.
As other posters' replies have indicated, the bottom line question is, "Does a binding contract exist for the second load?" That answer is probably determined by whether the buyer, and you, reasonably thought at the time of the original conversation about "1 load plus 1 or 2 more" that the "1 or 2 more" was a definite, mutually binding, order for future delivery at the set price. I can't personally see how it was, if the quantity was still indefinite, since what could you have told the supplier to hold aside for future sale at that point -- 1 more, or 2 more loads? But a court may decide differently.
> a) The only formal order was for the first load. This order was
> completed by the supplier. My name didn't appear on any of the
> papers.
> In theory then this order is still unfulfilled and I didn't sign any
> contract/order.
That statement puzzles me (one of many, in your post). Why do you say, "In theory [the first] order is still unfulfilled?" Obviously, it _was_ fulfilled, directly by the supplier as both you and the buyer apparently anticipated.
> b) The subsequent orders were verbally placed and although I'm
> inclined to sympathise with the customer, this doesn't help if the
> customer wants to force me to supply. I had a verbal order with the
> supplier (I've known them for years), but they seem to have forgotten
> the order or have sold the goods in a sellers' market.
OK, now it's sounding like you are NOT directly employed by the supplier. You will have to clarify that if you want any useful responses.
What were the exact terms of your "verbal order" with the supplier? Did you in fact put them on notice you wanted them to set aside at least one, perhaps 2 more loads, for this customer to buy later at the original price? If so, what did they say they would agree to do? There's too much left unsaid in your post to give any definite answer about who is liable to whom even putting aside that we don't know yet which set of law applies.
> c) Although they sent through a formal second order. I came back to
> them immediately with the problem and so didn't accept it.
Now your language again seems to support the view that there is no binding contract formed until your supplier, for whom you are acting as (disclosed?) agent, "accepts" the order and agrees to fulfill it.
> As always I'm trying to supply the goods from elsewhere,
So, are you an agent for a variety of different suppliers? Do you in fact buy on your own account, or simply relay these orders to potential suppliers who then bill directly to the customer (much the way an independent insurance agent does for a variety of companies)? You need to get your facts straight on these issues.
> but I'd like
> to point out to the customer that there is little point in trying to
> force me to supply.
Sir, to the contrary, there is _every_ point in this buyer trying to force you to supply, IF in fact you have a contract obligation to do so. He could either compel performance at the original price or, if that is not possible, he could sue you for the price difference if he has to obtain them elsewhere. In addition, he can also sue (1) for his own lost profits if _he_ was planning to resell them and was unable to do so because you failed to supply; (2) for his incidental expenses (warehousing, transportation, insurance, etc.) to obtain them from an alternate supplier, and (3) for his conseequential damages, if these losses were of the type within the reasonable contemplation of the parties at the time of contracting. Frex, if he had to shut down his entire factory because you failed to supply the widgets he had ordered, and needed, to keep the place running, _you_ could be liable for _all_ his resulting losses, which could run into the millions or more.
Get your facts together, and ask your solicitor for real advice. You could be sitting pretty, with no real liability exposure, OR you could be in a situation where your potential damages you could owe this buyer are far more than the mere price of the goods. Good luck,
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> I supply goods from Europe into the UK, I'm an agent for various
> Europeans suppliers.
Are you the suppliers' employee, or an independent businessman? In either case, if your relationship as a mere agent to the suppliers (who would be the principal party actually contracting with the buyer to sell the goods) was disclosed to the buyer, you probably do not have any personal liability (under USA law at least) for breach of contract, if your supplier/principal fails to fulfill a proper order from a buyer that they had accepted. However, your supplier would. And if you FAILED to disclose to the buyer that you were only acting as agent for your principal, he could sue the principal AND could also sue you directly, at least under USA law.
Before we get into this, though, why are you asking about this here? Most of the netizens on MLM are in USA. If you really think you need legal advice, you need to ask someone on your side of the pond, especially since it seems to require a knowledge not only of UK law but EU commercial law as well and possibly also the domestic civil law of one or more Continental nations. If you are an employee of the supplier, ask to speak to _their_ legal dept. If you are independent, this is a good time to look around and get yourself a solicitor you can put on retainer to advise your business from time to time. That would be a very good investment and a reasonable cost of doing business.
> I received an order from a UK customer for 1 load
> + 1-2 more. The order was verbal. I agreed this with my supplier.
It sounds possibly as though in your usual practice, a customer's order is not "accepted" until you relay it to the supplier for whom you act as agent, and until that supplier says "yes" to the order. In that case you did nothing wrong, if you relayed each order promptly when it came in. In a rising market, it is the buyer who is out of luck, for not placing a definite order for the extra loads sooner than he did. The question that remains is whether the buyer in fact placed a definite order at the old price for future delivery (and future payment) that was accepted by someone with authority to accept it.
> Then
> a formal order came in for the first load and I passed it on to the
> supplier, they supplied, invoiced directly and were paid in full.
The fact that the supplier invoiced the buyer directly makes me think you are _not_ acting as an independent middleman (distributor, jobber, wholesaler) in this transaction such that you would buy goods on your own account from the supplier at your cost and resell them to your buyer at a (hopefully) higher price, taking your own profit and overhead from the difference. How, indeed, do you get paid for what you do? Do you get a commission on completed sales? A salary? In either event it sounds like it is the supplier, not you, who+ has a contract with the buyer, and that you are working for the supplier and paid by him.
> Then I received a second order. The supplier then said that they had
> run out of goods and hadn't reserved goods as they had never received
> a formal order for more than one load! It's a steeply rising market,
> so the customer can't buy elsewhere at the same price and is
> understandably angry. They say that they will look to force me to
> supply two more loads at the same price, but can they?
That depends on all kinds of facts not apparent from your post, and is why you should either consult your own solicitor promptly or, if you are an employee-agent of the supplier, notify the supplier that the buyer is making this claim and let them (and their legal dept.) take care of it.
As other posters' replies have indicated, the bottom line question is, "Does a binding contract exist for the second load?" That answer is probably determined by whether the buyer, and you, reasonably thought at the time of the original conversation about "1 load plus 1 or 2 more" that the "1 or 2 more" was a definite, mutually binding, order for future delivery at the set price. I can't personally see how it was, if the quantity was still indefinite, since what could you have told the supplier to hold aside for future sale at that point -- 1 more, or 2 more loads? But a court may decide differently.
> a) The only formal order was for the first load. This order was
> completed by the supplier. My name didn't appear on any of the
> papers.
> In theory then this order is still unfulfilled and I didn't sign any
> contract/order.
That statement puzzles me (one of many, in your post). Why do you say, "In theory [the first] order is still unfulfilled?" Obviously, it _was_ fulfilled, directly by the supplier as both you and the buyer apparently anticipated.
> b) The subsequent orders were verbally placed and although I'm
> inclined to sympathise with the customer, this doesn't help if the
> customer wants to force me to supply. I had a verbal order with the
> supplier (I've known them for years), but they seem to have forgotten
> the order or have sold the goods in a sellers' market.
OK, now it's sounding like you are NOT directly employed by the supplier. You will have to clarify that if you want any useful responses.
What were the exact terms of your "verbal order" with the supplier? Did you in fact put them on notice you wanted them to set aside at least one, perhaps 2 more loads, for this customer to buy later at the original price? If so, what did they say they would agree to do? There's too much left unsaid in your post to give any definite answer about who is liable to whom even putting aside that we don't know yet which set of law applies.
> c) Although they sent through a formal second order. I came back to
> them immediately with the problem and so didn't accept it.
Now your language again seems to support the view that there is no binding contract formed until your supplier, for whom you are acting as (disclosed?) agent, "accepts" the order and agrees to fulfill it.
> As always I'm trying to supply the goods from elsewhere,
So, are you an agent for a variety of different suppliers? Do you in fact buy on your own account, or simply relay these orders to potential suppliers who then bill directly to the customer (much the way an independent insurance agent does for a variety of companies)? You need to get your facts straight on these issues.
> but I'd like
> to point out to the customer that there is little point in trying to
> force me to supply.
Sir, to the contrary, there is _every_ point in this buyer trying to force you to supply, IF in fact you have a contract obligation to do so. He could either compel performance at the original price or, if that is not possible, he could sue you for the price difference if he has to obtain them elsewhere. In addition, he can also sue (1) for his own lost profits if _he_ was planning to resell them and was unable to do so because you failed to supply; (2) for his incidental expenses (warehousing, transportation, insurance, etc.) to obtain them from an alternate supplier, and (3) for his conseequential damages, if these losses were of the type within the reasonable contemplation of the parties at the time of contracting. Frex, if he had to shut down his entire factory because you failed to supply the widgets he had ordered, and needed, to keep the place running, _you_ could be liable for _all_ his resulting losses, which could run into the millions or more.
Get your facts together, and ask your solicitor for real advice. You could be sitting pretty, with no real liability exposure, OR you could be in a situation where your potential damages you could owe this buyer are far more than the mere price of the goods. Good luck,
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
"Per stirpes" distribution to legatees under a Will
On Jun 25, 6:17 am, Stan Brown <the_stan_br...@fastmail.fm> wrote:
> Sun, 24 Jun 2007 08:01:26 -0400 from Stuart Bronstein
> <spamt...@lexregia.com>:
>
> > If there is no will, the law normally provides that all the children
> > (or in your case grandchildren) share equally.
If the predeceased children of the decedent had different numbers of children each, then the "grandchildren share equally" only in a _per_capita_ jurisdiction. Is that the rule in CA, Stuart?
> Out of curiosity, what if there were two children, A and B, both
> deceased. A had one child A1, still living; B had three children, B1,
> B2, B3, still living.
In a default "per capita" state, or if so provided by Will, each surviving, orphaned descendant of Testator T regardless of generation would receive an equal share. In Stan's example, each grandchild of T would get 1/4 of the residuary estate.
In a default "per stirpes" state, or if so provided by Will, each branch of T's descendants at a given generation would receive an equal share. Then, if the scion of that branch had predeceased T, all of his living descendants at the next generation would receive an equal share of what _their_ intermediate ancestor would have received from T.
> Do all four grandchildren get equal shares of an intestate's estate,
Yes, if the distribution rule is strictly per capita.
> or does a half share descend to the children of each deceased child,
> so that A1 gets as much as B1, B2, and B3 put together?
Yes, if the rule is per stirpes. Note that this is essentially the same result that would accrue if A and B were living when T died, put all their inheritance in savings (or if it was, e.g., a share of the acreage), and then A and B each passed that amount along to _their_own_ descendants when A and B each died.
Per stirpes is the common default rule. Some states have a form of modified per stirpes which applies per capita distribution to all descendants at the same generational level, so that frex if A and B had died in Stan's example but they also had a childless sister, C, C would get 1/3 and the 4 orphaned grandchildren of T (regardless of which descendant of T was their parent) would share the remaining 2/3. I'm not personally aware of any USA states that make strict per capita distribution the default in an intestate situation or where not specified in the Will, but that doesn't mean there aren't any.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> Sun, 24 Jun 2007 08:01:26 -0400 from Stuart Bronstein
> <spamt...@lexregia.com>:
>
> > If there is no will, the law normally provides that all the children
> > (or in your case grandchildren) share equally.
If the predeceased children of the decedent had different numbers of children each, then the "grandchildren share equally" only in a _per_capita_ jurisdiction. Is that the rule in CA, Stuart?
> Out of curiosity, what if there were two children, A and B, both
> deceased. A had one child A1, still living; B had three children, B1,
> B2, B3, still living.
In a default "per capita" state, or if so provided by Will, each surviving, orphaned descendant of Testator T regardless of generation would receive an equal share. In Stan's example, each grandchild of T would get 1/4 of the residuary estate.
In a default "per stirpes" state, or if so provided by Will, each branch of T's descendants at a given generation would receive an equal share. Then, if the scion of that branch had predeceased T, all of his living descendants at the next generation would receive an equal share of what _their_ intermediate ancestor would have received from T.
> Do all four grandchildren get equal shares of an intestate's estate,
Yes, if the distribution rule is strictly per capita.
> or does a half share descend to the children of each deceased child,
> so that A1 gets as much as B1, B2, and B3 put together?
Yes, if the rule is per stirpes. Note that this is essentially the same result that would accrue if A and B were living when T died, put all their inheritance in savings (or if it was, e.g., a share of the acreage), and then A and B each passed that amount along to _their_own_ descendants when A and B each died.
Per stirpes is the common default rule. Some states have a form of modified per stirpes which applies per capita distribution to all descendants at the same generational level, so that frex if A and B had died in Stan's example but they also had a childless sister, C, C would get 1/3 and the 4 orphaned grandchildren of T (regardless of which descendant of T was their parent) would share the remaining 2/3. I'm not personally aware of any USA states that make strict per capita distribution the default in an intestate situation or where not specified in the Will, but that doesn't mean there aren't any.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Lawyer language, part 3
On Jun 24, 8:01 am, David Ames <worldrec...@juno.com> wrote:
> On Jun 11, 7:13 am, Alan McKenney <alan_mckenn...@yahoo.com> wrote:
>
> > In legal discussions and (supposedly) legal
> > documents one all too frequently runs into
> > prose like the following
>
> "failed, onitted and neglexted" --
>
> what distinguishes each of these from the others, when alleging that
> payment has not been made?
IMO this is just like the "to have AND to hold" analysis in my earler post on this thread. The lawyer who drafted that phrase is trying to make sure there is no weasel-room for another lawyer to argue that what his client did, or wants to do, falls between the cracks. These words are partial (some would argue complete) synonyms for "didn't do it"; the only reason to state them all is that a creative counsel on the other side could find a way to say that they _are_ only partial synonyms and that what his client did or didn't do, fell outside the range of what the drafter is complaining of, and thus, does not give rise to liability, since of course he can't be liable for doing or not doing something if it wasn't within the scope of what he was legally obligated to do or avoid, or if the reasons he did or didn't do something are outside the scope of the permissible or impermissible reasons for doing or not doing it.
Try imagining what would happen if the clause you suggest only contained one of those words, and not the whole list of partial synonyms, AND if the law were fetishistically precise about the meanings it would allow words to assume (which it used to be more than today, see below). Here's a few that occur to me off the top of the head:
complaint: D "failed" to pay P
possible answer: D didn't "fail" to pay P, since that word "fail" indicates an absence of any effort or desire to ever make payment; my client sincerely wanted to pay, but it just slipped his mind, so he "neglected" to do it that month. Or, he inadvertently "omitted" the check from the envelope when he sent that bill to P from the stack of bills he was paying. Or, he negligently put the wrong check in the wrong envelope. Ad infinitum.
complaint: D "omitted" to pay P
possible answer: D didn't "omit" to pay P, since that indicates he somehow left payment out. D did in fact include payment when he sent the bill back to P, but he forgot to include postage, so it came back and "failed" to reach P. Or, D didn't "omit" payment, he affirmatively "refused" to pay because the goods were shoddy and he believed he didn't owe anything. Or, D didn't "omit" payment, he did send a check, he just "neglected" to make sure there was enough cash in his account to cover the check. Ad infinitum.
complaint: D "neglected" to pay P
possible answer: There was no negligence involved because D knew exactly what he was doing and intended to fail to pay it. Or, D "omitted" to pay but that omission did not rise to the level of "neglect" since it was a reasonable mistake and anybody could have done it even when exercising due care. And so on.
You get the idea. By including all the partial synonyms, the drafter of such a clause is getting the message across, "I don't care what the reason was or what your excuse is, we intend to cover the whole ballpark, and the fact is, payment from D never reached P in a form that would satisfy the contract." It takes out the weasel room.
Now, why do lawyers do this? Frankly it happened more in the old days than today, and is found less and less in modern legal language, for 2 main reasons: (1) the old forms of action and pleading required very precise, complete allegations of what the complainer said the defendant did wrong, and a complaint was subject to dismissal for what would today be thought a trivial factual error; modern pleading rules generally require only "notice" pleading, i.e. something sufficient to put the defendant on notice of the general nature of what he is alleged to have done wrong; and (2) modern law (and the fusion of law and equity in most jurisdictions) has gone a great deal farther than in the old days towards looking at the real intent of the parties, the reasonableness of their actions, the good or bad faith with which actions were undertaken, and the fairness of the outcome to both sides.
The old way applied strict, supposedly literal, in fact almost magical or talismanic meanings to the words used, while the new way recognizes that all language is metaphor, that all words are ambiguous, that communication is never perfect, and thus tries to get at what the parties REALLY wanted and meant by what they said, rather than chopping off a perfectly logical and clearly intended meaning by applying a narrow, strict interpretation. But to the extent some states' laws (or some judges) still give Draconian effect to minor linguistic slips, AND to the extent all good lawyers exercise an inherent degree of caution and CYA in the language they use (see my earlier posts on this thread), use of such strings of synonyms is likely to survive quite a while into the legal future.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> On Jun 11, 7:13 am, Alan McKenney <alan_mckenn...@yahoo.com> wrote:
>
> > In legal discussions and (supposedly) legal
> > documents one all too frequently runs into
> > prose like the following
>
> "failed, onitted and neglexted" --
>
> what distinguishes each of these from the others, when alleging that
> payment has not been made?
IMO this is just like the "to have AND to hold" analysis in my earler post on this thread. The lawyer who drafted that phrase is trying to make sure there is no weasel-room for another lawyer to argue that what his client did, or wants to do, falls between the cracks. These words are partial (some would argue complete) synonyms for "didn't do it"; the only reason to state them all is that a creative counsel on the other side could find a way to say that they _are_ only partial synonyms and that what his client did or didn't do, fell outside the range of what the drafter is complaining of, and thus, does not give rise to liability, since of course he can't be liable for doing or not doing something if it wasn't within the scope of what he was legally obligated to do or avoid, or if the reasons he did or didn't do something are outside the scope of the permissible or impermissible reasons for doing or not doing it.
Try imagining what would happen if the clause you suggest only contained one of those words, and not the whole list of partial synonyms, AND if the law were fetishistically precise about the meanings it would allow words to assume (which it used to be more than today, see below). Here's a few that occur to me off the top of the head:
complaint: D "failed" to pay P
possible answer: D didn't "fail" to pay P, since that word "fail" indicates an absence of any effort or desire to ever make payment; my client sincerely wanted to pay, but it just slipped his mind, so he "neglected" to do it that month. Or, he inadvertently "omitted" the check from the envelope when he sent that bill to P from the stack of bills he was paying. Or, he negligently put the wrong check in the wrong envelope. Ad infinitum.
complaint: D "omitted" to pay P
possible answer: D didn't "omit" to pay P, since that indicates he somehow left payment out. D did in fact include payment when he sent the bill back to P, but he forgot to include postage, so it came back and "failed" to reach P. Or, D didn't "omit" payment, he affirmatively "refused" to pay because the goods were shoddy and he believed he didn't owe anything. Or, D didn't "omit" payment, he did send a check, he just "neglected" to make sure there was enough cash in his account to cover the check. Ad infinitum.
complaint: D "neglected" to pay P
possible answer: There was no negligence involved because D knew exactly what he was doing and intended to fail to pay it. Or, D "omitted" to pay but that omission did not rise to the level of "neglect" since it was a reasonable mistake and anybody could have done it even when exercising due care. And so on.
You get the idea. By including all the partial synonyms, the drafter of such a clause is getting the message across, "I don't care what the reason was or what your excuse is, we intend to cover the whole ballpark, and the fact is, payment from D never reached P in a form that would satisfy the contract." It takes out the weasel room.
Now, why do lawyers do this? Frankly it happened more in the old days than today, and is found less and less in modern legal language, for 2 main reasons: (1) the old forms of action and pleading required very precise, complete allegations of what the complainer said the defendant did wrong, and a complaint was subject to dismissal for what would today be thought a trivial factual error; modern pleading rules generally require only "notice" pleading, i.e. something sufficient to put the defendant on notice of the general nature of what he is alleged to have done wrong; and (2) modern law (and the fusion of law and equity in most jurisdictions) has gone a great deal farther than in the old days towards looking at the real intent of the parties, the reasonableness of their actions, the good or bad faith with which actions were undertaken, and the fairness of the outcome to both sides.
The old way applied strict, supposedly literal, in fact almost magical or talismanic meanings to the words used, while the new way recognizes that all language is metaphor, that all words are ambiguous, that communication is never perfect, and thus tries to get at what the parties REALLY wanted and meant by what they said, rather than chopping off a perfectly logical and clearly intended meaning by applying a narrow, strict interpretation. But to the extent some states' laws (or some judges) still give Draconian effect to minor linguistic slips, AND to the extent all good lawyers exercise an inherent degree of caution and CYA in the language they use (see my earlier posts on this thread), use of such strings of synonyms is likely to survive quite a while into the legal future.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
"Issue spotting" law school exams
On Jun 24, 8:01 am, bon...@host122.r-bonomi.com (Robert Bonomi) wrote:
> In article <4nem73tr7o5pat30qeasftob8oa526g...@4ax.com>,
>
> datali...@excite.com <datali...@excite.com> wrote:
> >Hello fellow law students, lawyers, judges, etc...
>
> >I'm a law student and I have not been getting good grades lately
> >since my grader says that I am failing to spot all the issues
> >on final exam law essays.
> It is not a "science", it is an _art_. Some people have the talent for it,
> and some do =not=.
I agree with Mr. Bonomi's thoughtful analysis, and would add this:
There are 2 somewhat different kinds of "issue spotting": (1) what students are expected to do on final exams, and (2) what lawyers are expected to do in the real world, when a client walks into the office and says "I have a problem" and presents the lawyer with a set of operative facts regarding some circumstance the client is legally concerned about.
Let's start with the latter. As may be obvious, one of the reasons law schools like to give "issue spotting" exams is that this step of analysis is a vital skill in being a real world lawyer. The client is not going to come into the office with a clearly defined understanding of the legal issues involved, even if he has a strong grasp of the pertinent facts (which not all do), and the things the client feels are important may be irrelevant and vice versa. The things the client forgot to mention as insignificant details may in fact be the turning point around which the whole case revolves, and make the difference between winning and losing (in litigation), or getting a good vs. bad bargain (in transactional work). It is the lawyer, applying the analytical skills he or she honed in law school (but which must at root come from native ability), and INFORMED BY A DEEP AND BROAD GENERAL KNOWLEDGE OF AN APPLICABLE BODY OF LAW, who can and must say to the client, fact A is significant and could lead to X result, while fact B is irrelevant and makes no legal difference to the desired outcome.
If you have followed the various threads on MLM for any length of time (or if you're a newbie here, go back and look at the archives), you will see multiple examples of both lawyers and non-lawyers applying analyitical skills coupled with general legal knowledge to identify issues arising from the factual situations that various Original Posters present for our consideration. That's certainly one way to start, and you may want to try reading the OP scenarios first and coming up with your own issue-spotting analysis, before reading the followup posts to see what other people think. If you find a good match, you're probably doing a pretty good job of spotting real-world issues.
Getting back to law school exams, though, which is your immediate concern, they are a bit different. Not all the issues you might spot in a real client's factual scenario are of actual concern to the client, and some may even be things he affirmatively wants to avoid getting into, even if they may present fascinating legal issues to the analyst. So, real-world issue spotting is focused on identifying the legal issues that make a difference to the outcome the client wants to achieve. On a test, however, apart from testing your analytical skills (which all issue spotting tests do), often the prof is more interested in finding out whether you actually learned the material you have covered in the particular course. This means 2 things:
First, that the kinds of issues you will be expected to spot are those which arise from the legal principles you have covered in that course, not from the entire range of possible issues. In a contracts class, your final exam will not expect you to be able to spot criminal law issues, frex. If you learned what you are supposed to have learned from that course, issue spotting should be fairly easy, as long as you have had that initial "light bulb" moment Mr. Bonomi refers to, which only has to happen _once_, not separately for each class. The best way to really learn the material usually requires you to read original judicial opinions and, by means of questions the prof asks (the so called "Socratic Method") together with the questions that you and your classmates ask each other in your study groups (you DO have one, right? IMO it's a virtual necessity in law school no matter how smart you are), you try to figure out what the court is really getting at, and glean a generally applicable rule from the facts, issues, and result in the particular case. You then need to outline these rules, on your own (with your study group), not so much because you need to create a study guide (you can buy one of those) but because the PROCESS of outlining issues and rules and how they fit together to form a body of law, and organizing and writing it down yourself, helps you understand the whole of the material you are covering in a particular class.
BTW, when you get to the bar exam stage, you will be expected to spot issues more the way a real-life lawyer has to, where all kinds of different bodies of law may be implicated in a single fact scenario; that's when you have to start putting together all the diverse areas of law you learned in those separate classes.
The best way I can put it is, if you know the material backwards and forwards the way you're supposed to, the issues fairly well jump out at you when you read a fact pattern containing them, sort of the way the contrasting patterns jump out at you in the color-blindness tests to get your driver's license. Either you can see the difference between red and green, or you can't, and if you can't, no amount of training will make the number or letter that is printed in green dots stand out from the background of red dots: all you will see is a bunch of undifferentiated dots.
Second, this means that on a law school test, the prof is likely to throw in every issue you should have learned about in that class, no matter how unlikely to arise in real life, including the kitchen sink, in a single fact scenario, which is why law school exam fact patterns are often somewhat hilariously convoluted and complex. The prof may throw in, e.g. 10 contract issues or 10 tort issues in one pattern, and your grade will usually depend in large part on how many of those issues you spot, less so on how thorough your analysis is of the ones you _do_ spot.
Hope this helps; good luck.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> In article <4nem73tr7o5pat30qeasftob8oa526g...@4ax.com>,
>
> datali...@excite.com <datali...@excite.com> wrote:
> >Hello fellow law students, lawyers, judges, etc...
>
> >I'm a law student and I have not been getting good grades lately
> >since my grader says that I am failing to spot all the issues
> >on final exam law essays.
> It is not a "science", it is an _art_. Some people have the talent for it,
> and some do =not=.
I agree with Mr. Bonomi's thoughtful analysis, and would add this:
There are 2 somewhat different kinds of "issue spotting": (1) what students are expected to do on final exams, and (2) what lawyers are expected to do in the real world, when a client walks into the office and says "I have a problem" and presents the lawyer with a set of operative facts regarding some circumstance the client is legally concerned about.
Let's start with the latter. As may be obvious, one of the reasons law schools like to give "issue spotting" exams is that this step of analysis is a vital skill in being a real world lawyer. The client is not going to come into the office with a clearly defined understanding of the legal issues involved, even if he has a strong grasp of the pertinent facts (which not all do), and the things the client feels are important may be irrelevant and vice versa. The things the client forgot to mention as insignificant details may in fact be the turning point around which the whole case revolves, and make the difference between winning and losing (in litigation), or getting a good vs. bad bargain (in transactional work). It is the lawyer, applying the analytical skills he or she honed in law school (but which must at root come from native ability), and INFORMED BY A DEEP AND BROAD GENERAL KNOWLEDGE OF AN APPLICABLE BODY OF LAW, who can and must say to the client, fact A is significant and could lead to X result, while fact B is irrelevant and makes no legal difference to the desired outcome.
If you have followed the various threads on MLM for any length of time (or if you're a newbie here, go back and look at the archives), you will see multiple examples of both lawyers and non-lawyers applying analyitical skills coupled with general legal knowledge to identify issues arising from the factual situations that various Original Posters present for our consideration. That's certainly one way to start, and you may want to try reading the OP scenarios first and coming up with your own issue-spotting analysis, before reading the followup posts to see what other people think. If you find a good match, you're probably doing a pretty good job of spotting real-world issues.
Getting back to law school exams, though, which is your immediate concern, they are a bit different. Not all the issues you might spot in a real client's factual scenario are of actual concern to the client, and some may even be things he affirmatively wants to avoid getting into, even if they may present fascinating legal issues to the analyst. So, real-world issue spotting is focused on identifying the legal issues that make a difference to the outcome the client wants to achieve. On a test, however, apart from testing your analytical skills (which all issue spotting tests do), often the prof is more interested in finding out whether you actually learned the material you have covered in the particular course. This means 2 things:
First, that the kinds of issues you will be expected to spot are those which arise from the legal principles you have covered in that course, not from the entire range of possible issues. In a contracts class, your final exam will not expect you to be able to spot criminal law issues, frex. If you learned what you are supposed to have learned from that course, issue spotting should be fairly easy, as long as you have had that initial "light bulb" moment Mr. Bonomi refers to, which only has to happen _once_, not separately for each class. The best way to really learn the material usually requires you to read original judicial opinions and, by means of questions the prof asks (the so called "Socratic Method") together with the questions that you and your classmates ask each other in your study groups (you DO have one, right? IMO it's a virtual necessity in law school no matter how smart you are), you try to figure out what the court is really getting at, and glean a generally applicable rule from the facts, issues, and result in the particular case. You then need to outline these rules, on your own (with your study group), not so much because you need to create a study guide (you can buy one of those) but because the PROCESS of outlining issues and rules and how they fit together to form a body of law, and organizing and writing it down yourself, helps you understand the whole of the material you are covering in a particular class.
BTW, when you get to the bar exam stage, you will be expected to spot issues more the way a real-life lawyer has to, where all kinds of different bodies of law may be implicated in a single fact scenario; that's when you have to start putting together all the diverse areas of law you learned in those separate classes.
The best way I can put it is, if you know the material backwards and forwards the way you're supposed to, the issues fairly well jump out at you when you read a fact pattern containing them, sort of the way the contrasting patterns jump out at you in the color-blindness tests to get your driver's license. Either you can see the difference between red and green, or you can't, and if you can't, no amount of training will make the number or letter that is printed in green dots stand out from the background of red dots: all you will see is a bunch of undifferentiated dots.
Second, this means that on a law school test, the prof is likely to throw in every issue you should have learned about in that class, no matter how unlikely to arise in real life, including the kitchen sink, in a single fact scenario, which is why law school exam fact patterns are often somewhat hilariously convoluted and complex. The prof may throw in, e.g. 10 contract issues or 10 tort issues in one pattern, and your grade will usually depend in large part on how many of those issues you spot, less so on how thorough your analysis is of the ones you _do_ spot.
Hope this helps; good luck.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Estate probate delay?
On Jun 18, 7:00 am, "q1m7ot...@sneakemail.com" <q1m7ot...@sneakemail.com> wrote:
> My two children have been waiting four years to get $10,000 each from
> there grandfathers estate.
In what state is the estate being probated? When was probate actually opened (which may be some time after grandpa died)? Was it a contested judicial probate, or a simpler, faster administrative probate? Typically an administrative probate can be completed in less than a year. There is rarely an excuse for closing of probate to take as long as 4 years unless there is a pending dispute over distribution of the assets.
> I have called and wrote to the executor of
> the estate, the attorney handling the estate and the courts trying to
> get things moving along with little success.
What have you been told by these folks? How are we supposed to guess what to do, without knowing at least as much as you know, in summary at least? What seems to be causing the holdup?
> The executor of the
> estate has paid herself fully and has only paid the other
> beneficiaries about 1/2 what they are due. The estate is simple and
> should have been completed long before now. The executor is
> unorganized and has no motivation to complete further distributions.
That could be grounds to ask to have her removed as executor, and/or to have the court deny a fee to the present estate attorney (and of course the new executor would be able to pick his or her own attorney, someone _trhey_ can trust) to let another family member finish wrapping up the estate. Seems to me the present executrix should be happy to do this, unless she has something to hide, e.g. improper distributions to her benefit, or wants to get paid an executor's fee (which she may already have taken out, even though it wasn't earned yet until the paperwork was done).
> The executor always says just give me two more weeks and I will wrap
> things up.
Obviously, you feel that is an empty excuse and she has no intention of acting. So why don't you do something about it?
> I have been reluctant to take legal action because the
> executor will keep delaying for years which would run up legal fees.
Why do you think that? Delaying for years is what she's already doing. At least make an appointment to consult with an independent attorney to get some real advice for you and your kids, bringing along all the paperwork you have collected to date. Then you can get an idea of what is possible to speed things along, and what isn't, and how best to accomplish your goals. The new attorney's fee should be a reasonably small price to pay to get things going again, and it's quite possible he will find a way to even save your kids money by making the lazy executrix cough up some or all of of the money she (may have) misappropriated. Good luck,
> I am looking for advice as to how to apply pressure and get these
> distributions finished.
Make your appointment. See your lawyer. Follow his advice.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> My two children have been waiting four years to get $10,000 each from
> there grandfathers estate.
In what state is the estate being probated? When was probate actually opened (which may be some time after grandpa died)? Was it a contested judicial probate, or a simpler, faster administrative probate? Typically an administrative probate can be completed in less than a year. There is rarely an excuse for closing of probate to take as long as 4 years unless there is a pending dispute over distribution of the assets.
> I have called and wrote to the executor of
> the estate, the attorney handling the estate and the courts trying to
> get things moving along with little success.
What have you been told by these folks? How are we supposed to guess what to do, without knowing at least as much as you know, in summary at least? What seems to be causing the holdup?
> The executor of the
> estate has paid herself fully and has only paid the other
> beneficiaries about 1/2 what they are due. The estate is simple and
> should have been completed long before now. The executor is
> unorganized and has no motivation to complete further distributions.
That could be grounds to ask to have her removed as executor, and/or to have the court deny a fee to the present estate attorney (and of course the new executor would be able to pick his or her own attorney, someone _trhey_ can trust) to let another family member finish wrapping up the estate. Seems to me the present executrix should be happy to do this, unless she has something to hide, e.g. improper distributions to her benefit, or wants to get paid an executor's fee (which she may already have taken out, even though it wasn't earned yet until the paperwork was done).
> The executor always says just give me two more weeks and I will wrap
> things up.
Obviously, you feel that is an empty excuse and she has no intention of acting. So why don't you do something about it?
> I have been reluctant to take legal action because the
> executor will keep delaying for years which would run up legal fees.
Why do you think that? Delaying for years is what she's already doing. At least make an appointment to consult with an independent attorney to get some real advice for you and your kids, bringing along all the paperwork you have collected to date. Then you can get an idea of what is possible to speed things along, and what isn't, and how best to accomplish your goals. The new attorney's fee should be a reasonably small price to pay to get things going again, and it's quite possible he will find a way to even save your kids money by making the lazy executrix cough up some or all of of the money she (may have) misappropriated. Good luck,
> I am looking for advice as to how to apply pressure and get these
> distributions finished.
Make your appointment. See your lawyer. Follow his advice.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Lawyer language, part 2
On Jun 15, 7:09 am, mak...@gmail.com wrote:
> Alan McKenney wrote:
* * *
> > 2. Is this sort of writing being taught in law schools
* * *
> No, I don't think it's taught in law schools. I have written e-mails on
> several occasions where recipients insisted that I must have consulted
> a lawyer on my wording, which was not true. It's more of a mindset
> that leads to a certain defensive posture. I'm not saying it's bad, since
> I have used it myself -- but it's easy to spot, as the OP says. People
> who are suited to legal training have a natural inclination to this
> mindset. Yes, it definitely has a place in the legal world -- when my
> lawyer uses it!
Having read Mark's examples below, I respectfully concur in part and dissent in part. I concur that a certain defensive posture is natural to the legal mindset, for a number of reasons. First, lawyers (if I may say so myself) tend to be at least reasonably intelligent, and with some notable exceptions (such as the guy in DC -- a judge no less -- who's currently in trial suing his dry cleaners for $67 MILLION for losing his pants -- most lawyers try to avoid doing things that are blatantly stupid, the sort of act that the old dumb-guy joke says usually leads to an obituary where the deceased's last words were, "Hey, Bubba, hold my beer and watch me do THIS!!" These are people who act before they think, something lawyers are usually strongly adverse to do. Not that they have to sit and stew about it for an inordinately long time -- the analysis can be split second, or second nature -- but if a person is reacting just from the heart (or the adrenal glands, or the gonads) and not using his head, he is not acting like a lawyer.
Second, both because of their native intelligence and their legal training, lawyers are inclined to think ahead more than a few steps regarding possible consequences both to themselves and to their clients, and to take appropriate action to fend off the likelihood of undesirable ones occurring. I do not claim that lawyers are unique in this ability: the chess player who can see how to force a checkmate of an opponent 20 moves ahead, or the ball player who seems to be able to predict where the defensemen are going to be in a rapidly changing arena and avoid them on his way to the goal (or who, on defense, seems to magically be in the right place at the right time to head off the attack, catch the ball, tackle or tag the runner), or the soldier who knows when to duck to avoid incoming mortar rounds, and when to pop up and shoot the other guy, are exercising exactly the same intelligence and skill set. But it does bear mentioning, as I think Mark would agree, that the large part of law school training is learning to "think like a lawyer", which involves following up on all the possible, even unlikely, consequences of a chain of action, and then analyzing and predicting how best to steer those consequences to get the optimum result.
Thirdly, due to both (1) their innate tendency to have foresight regarding the possible consequences of certain actions and (2) their training that disciplines and channels that tendency, there is an attitude of caution which most lawyers feel compelled to follow, both for themselves and their clients, enhanced by the facts that (a) the law is necessarily expressed in words, and thus (b) the lawyer makes a deep effort to shape his words to do what _he_ wants them to do, rather than being at their mercy, (c) it is easier to do that when those words are committed in writing, the whole purpose of the invention of writing being to preserve and record ideas that would otherwise be lost to memory or subject to different parties' varying recollections, and (d) having a backup plan -- "What if Plan A fails?" is one of the possible consequences -- is almost always a good idea.
Thus, lawyers generally belong to the "belt AND suspenders" school of sartorial security; if the belt breaks, the suspenders will still hold his pants up, and he won't be caught with his pants down, figuratively speaking. Hence, we get phraseology like "to have AND to hold" since somebody else's lawyer may argue that "to have" is not the same thing as "to hold" and that a person who is only given the right "to have" cannot do all the same things with that land or chattel as someone who has BOTH rights. Better to be safe than sorry, and eliminate the possibility of a hairsplitting argument that the words you chose did not cover the whole ballpark and left some room wide open for interpretation in center field.
However, I must respectfully disagree that the examples Mark cites are typical of "lawyer thinking." Rather, they are typical of "weasel language" to which lawyers have no claim of a monopoly, and which is used by anyone who wants to try to save face when he is caught red-handed doing something he shouldn't oughta, or who wants to muddy the waters enough so that no one can tell what he really means and he can pretend to agree with both sides. IMO politicians, NOT all of whom are lawyers (the Current Occupant, frex, is not) are the past masters at such disguised prevarications dressed up to sound pretty.
Running a close second to politicians at using florid language for saying what they think the customer wants to hear rather than admitting what they really think or mean are cheating husbands, English society matrons, Japanese salarymen, TV preachers, used car salesmen, Madison Avenue pitchmen, Latin American dictators, prostitutes, and, hey -- did I leave anybody out? My point being, don't just pick on the lawyers if your subject is self-serving euphemisms. We're all human. Speaking of which, IMO the former Occupant's famous line that "it depends on what 'is' is" was more the act of a cheating husband trying to weasel out of being caught cheating than the act of a lawyer or a politician, although it was of course a little of all 3.
> The legalese doesn't even have to be very long or convoluted. Here are
> two real-life examples that demonstrate, in my opinion, what is often
> the lawyer's main goal: to say something that can in no way come back
> to bite them, in other words the ultimate C.Y.A (cover your behind).
I agree that lawyers' training and inclination is to deal with all the "what ifs?" in preparing a contract or similar document, as well as to always consider the CYA aspect when sending letters to opposing counsel, etc. that may be used later to "set up" a claim that the other side should be sanctioned for acting in bad faith, or to head off such a claim being made against _their_ side (or, as with "defensive medicine", to affirmatively head off a malpractice claim). But that is all just a subset of the quite proper and duly-diligent "belt and suspenders" approach if it is done honestly. And to the extent a CYA argument may be made dishonestly by some, in cases where there really IS a bad deed he is trying to cover up, IMO that is due to the unfortunate weasel tendency of human nature and not to their legal training.
Now, a lawyer making such an argument on behalf of a client is in a whole different ball of wax than Mark's examples, below, who just happened to be lawyers but were speaking on their own behalf. First of all, the lawyer is frankly more likely than the self-represented client to _avoid_ making outrageously improbable arguments since, as an objective professional, not someone deeply and emotionally involved, he is in a much better position to know that such arguments will not fly with a judge or jury. The fact that this is so is why the rare exceptions -- when a lawyer makes an outrageous argument and gets shot down, or especially when he makes what APPEARS to be an outrageous argument that _succeeds_, often make the evening news. And, any lawyer who is reduced to making such arguments probably did so out of desperation, because he had a (laudable) duty to his client to give him the best possible representation of his interests but had no other better argument to offer.
The advocate who stretches a bit to make a point is not to be villified, but praised, since that is how the law evolves; our concepts of justice are far more civilized now than they were a few hundred years ago when an orphan child on the streets would be executed for theft of a loaf of bread, but the factory magnate would have no law at all supervising his employment of the same kid 18 hours a day in a dangerous sweatshop for pennies.
The law, of course, has standards as to what a lawyer can and cannot argue without risking sanctions: the position he takes on behalf of a client must be made upon reasonable inquiry, not for an improper purpose, well grounded in law and fact, or warranted by a nonfrivolous argument for extension, modification or reversal of existing law or establishment of new law (paraphrasing Federal Rule of Civiil Procedure 11).
> Whether the statement actually addresses the issue, furthers the
> discussion, leads to a solution, or whatever is secondary to that main
> goal.
Mark is talking about weasel language here, not legal language. Lawyers can be, and more frequently these days are, sanctioned for taking actions whose main goal is to sidetrack the discussion or avoid a solution or increase costs for everybody. Not that it isn't done occasionally, but when done, it is a violation, not the norm.
> Here's one, from a relative (a lawyer) asked to explain why he tried
> to transfer three of his personal credit card balances to the
> account of his incapacitated mother (the transfer was blocked
> due to the diligence of the legally-designated POA for the mother):
Another weasel with something bad to hide, not uniique to the shameful fact he also happened to be a lawyer.
> "...what you are referring to are 'attempted balance transfers.' By
> this phrase I can only assume that there was some attempt that was
> unsuccessful. So I assume that these are funds that cannot be
> attributed to me as none of the monies ever ended up in any account
> associated with me. "
Yeah, and it depends on what "is" is.
> Here's another one, from a lawyer who was asked if it was appropriate
> to continue disregarding the procedural rules of a volunteer
> organization:
>
> "I was simply stating a fact within my knowledge and nothing more."
Taken out of context, I don't necessarily see anything wrong with that. Before the quoted question was put to him, was he in fact advocating evasion of the procedural rules, or was he simply stating a point of fact within his knowledge? If he tried to pass off a soapbox exhortation as a statement of fact, that would be weasel language. In other words, a lie, since a mere statement of fact is NOT what it was intended to be. OTOH if it was in fact just a statement of fact, but everyone else was ASSUMING he intended it to be used as an exhortation to avoid the rules when he had no such intention, it is a fine example of how lawyers should and do use precise words to clarify what they mean when a possible ambiguity arises.
> The best word I can find to describe this style of expression is
> "disingenuous". Like I said, when it's my lawyer who's using it, I'm
> all for it!
Lawyers didn't invent being disingenuous; AFAIK that started with Adam and Eve and the apple tree. However, due to our training and skill in use of words, some of us who occasionally visit the Dark Side have come close to perfecting the art. I wouldn't be so flippantly quick to applaud a lawyer (on my side) who used unclear and ambiguous language unless it was a situation, such as international peace negotiations, divorce mediation or the like, that inevitably called for language leaving some wiggle room that would preserve some dignity for both sides in order to make progress toward a settlement. In just about any other legal context I can think of, ambiguity serves no useful purpose for anybody, and outright lying (which both of Mark's examples may be, or may not be, depending on context) is improper and counterproductive since, as almost always happens, the truth will out, at which point the liar or weasel is the one who will have egg on his face.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> Alan McKenney wrote:
* * *
> > 2. Is this sort of writing being taught in law schools
* * *
> No, I don't think it's taught in law schools. I have written e-mails on
> several occasions where recipients insisted that I must have consulted
> a lawyer on my wording, which was not true. It's more of a mindset
> that leads to a certain defensive posture. I'm not saying it's bad, since
> I have used it myself -- but it's easy to spot, as the OP says. People
> who are suited to legal training have a natural inclination to this
> mindset. Yes, it definitely has a place in the legal world -- when my
> lawyer uses it!
Having read Mark's examples below, I respectfully concur in part and dissent in part. I concur that a certain defensive posture is natural to the legal mindset, for a number of reasons. First, lawyers (if I may say so myself) tend to be at least reasonably intelligent, and with some notable exceptions (such as the guy in DC -- a judge no less -- who's currently in trial suing his dry cleaners for $67 MILLION for losing his pants -- most lawyers try to avoid doing things that are blatantly stupid, the sort of act that the old dumb-guy joke says usually leads to an obituary where the deceased's last words were, "Hey, Bubba, hold my beer and watch me do THIS!!" These are people who act before they think, something lawyers are usually strongly adverse to do. Not that they have to sit and stew about it for an inordinately long time -- the analysis can be split second, or second nature -- but if a person is reacting just from the heart (or the adrenal glands, or the gonads) and not using his head, he is not acting like a lawyer.
Second, both because of their native intelligence and their legal training, lawyers are inclined to think ahead more than a few steps regarding possible consequences both to themselves and to their clients, and to take appropriate action to fend off the likelihood of undesirable ones occurring. I do not claim that lawyers are unique in this ability: the chess player who can see how to force a checkmate of an opponent 20 moves ahead, or the ball player who seems to be able to predict where the defensemen are going to be in a rapidly changing arena and avoid them on his way to the goal (or who, on defense, seems to magically be in the right place at the right time to head off the attack, catch the ball, tackle or tag the runner), or the soldier who knows when to duck to avoid incoming mortar rounds, and when to pop up and shoot the other guy, are exercising exactly the same intelligence and skill set. But it does bear mentioning, as I think Mark would agree, that the large part of law school training is learning to "think like a lawyer", which involves following up on all the possible, even unlikely, consequences of a chain of action, and then analyzing and predicting how best to steer those consequences to get the optimum result.
Thirdly, due to both (1) their innate tendency to have foresight regarding the possible consequences of certain actions and (2) their training that disciplines and channels that tendency, there is an attitude of caution which most lawyers feel compelled to follow, both for themselves and their clients, enhanced by the facts that (a) the law is necessarily expressed in words, and thus (b) the lawyer makes a deep effort to shape his words to do what _he_ wants them to do, rather than being at their mercy, (c) it is easier to do that when those words are committed in writing, the whole purpose of the invention of writing being to preserve and record ideas that would otherwise be lost to memory or subject to different parties' varying recollections, and (d) having a backup plan -- "What if Plan A fails?" is one of the possible consequences -- is almost always a good idea.
Thus, lawyers generally belong to the "belt AND suspenders" school of sartorial security; if the belt breaks, the suspenders will still hold his pants up, and he won't be caught with his pants down, figuratively speaking. Hence, we get phraseology like "to have AND to hold" since somebody else's lawyer may argue that "to have" is not the same thing as "to hold" and that a person who is only given the right "to have" cannot do all the same things with that land or chattel as someone who has BOTH rights. Better to be safe than sorry, and eliminate the possibility of a hairsplitting argument that the words you chose did not cover the whole ballpark and left some room wide open for interpretation in center field.
However, I must respectfully disagree that the examples Mark cites are typical of "lawyer thinking." Rather, they are typical of "weasel language" to which lawyers have no claim of a monopoly, and which is used by anyone who wants to try to save face when he is caught red-handed doing something he shouldn't oughta, or who wants to muddy the waters enough so that no one can tell what he really means and he can pretend to agree with both sides. IMO politicians, NOT all of whom are lawyers (the Current Occupant, frex, is not) are the past masters at such disguised prevarications dressed up to sound pretty.
Running a close second to politicians at using florid language for saying what they think the customer wants to hear rather than admitting what they really think or mean are cheating husbands, English society matrons, Japanese salarymen, TV preachers, used car salesmen, Madison Avenue pitchmen, Latin American dictators, prostitutes, and, hey -- did I leave anybody out? My point being, don't just pick on the lawyers if your subject is self-serving euphemisms. We're all human. Speaking of which, IMO the former Occupant's famous line that "it depends on what 'is' is" was more the act of a cheating husband trying to weasel out of being caught cheating than the act of a lawyer or a politician, although it was of course a little of all 3.
> The legalese doesn't even have to be very long or convoluted. Here are
> two real-life examples that demonstrate, in my opinion, what is often
> the lawyer's main goal: to say something that can in no way come back
> to bite them, in other words the ultimate C.Y.A (cover your behind).
I agree that lawyers' training and inclination is to deal with all the "what ifs?" in preparing a contract or similar document, as well as to always consider the CYA aspect when sending letters to opposing counsel, etc. that may be used later to "set up" a claim that the other side should be sanctioned for acting in bad faith, or to head off such a claim being made against _their_ side (or, as with "defensive medicine", to affirmatively head off a malpractice claim). But that is all just a subset of the quite proper and duly-diligent "belt and suspenders" approach if it is done honestly. And to the extent a CYA argument may be made dishonestly by some, in cases where there really IS a bad deed he is trying to cover up, IMO that is due to the unfortunate weasel tendency of human nature and not to their legal training.
Now, a lawyer making such an argument on behalf of a client is in a whole different ball of wax than Mark's examples, below, who just happened to be lawyers but were speaking on their own behalf. First of all, the lawyer is frankly more likely than the self-represented client to _avoid_ making outrageously improbable arguments since, as an objective professional, not someone deeply and emotionally involved, he is in a much better position to know that such arguments will not fly with a judge or jury. The fact that this is so is why the rare exceptions -- when a lawyer makes an outrageous argument and gets shot down, or especially when he makes what APPEARS to be an outrageous argument that _succeeds_, often make the evening news. And, any lawyer who is reduced to making such arguments probably did so out of desperation, because he had a (laudable) duty to his client to give him the best possible representation of his interests but had no other better argument to offer.
The advocate who stretches a bit to make a point is not to be villified, but praised, since that is how the law evolves; our concepts of justice are far more civilized now than they were a few hundred years ago when an orphan child on the streets would be executed for theft of a loaf of bread, but the factory magnate would have no law at all supervising his employment of the same kid 18 hours a day in a dangerous sweatshop for pennies.
The law, of course, has standards as to what a lawyer can and cannot argue without risking sanctions: the position he takes on behalf of a client must be made upon reasonable inquiry, not for an improper purpose, well grounded in law and fact, or warranted by a nonfrivolous argument for extension, modification or reversal of existing law or establishment of new law (paraphrasing Federal Rule of Civiil Procedure 11).
> Whether the statement actually addresses the issue, furthers the
> discussion, leads to a solution, or whatever is secondary to that main
> goal.
Mark is talking about weasel language here, not legal language. Lawyers can be, and more frequently these days are, sanctioned for taking actions whose main goal is to sidetrack the discussion or avoid a solution or increase costs for everybody. Not that it isn't done occasionally, but when done, it is a violation, not the norm.
> Here's one, from a relative (a lawyer) asked to explain why he tried
> to transfer three of his personal credit card balances to the
> account of his incapacitated mother (the transfer was blocked
> due to the diligence of the legally-designated POA for the mother):
Another weasel with something bad to hide, not uniique to the shameful fact he also happened to be a lawyer.
> "...what you are referring to are 'attempted balance transfers.' By
> this phrase I can only assume that there was some attempt that was
> unsuccessful. So I assume that these are funds that cannot be
> attributed to me as none of the monies ever ended up in any account
> associated with me. "
Yeah, and it depends on what "is" is.
> Here's another one, from a lawyer who was asked if it was appropriate
> to continue disregarding the procedural rules of a volunteer
> organization:
>
> "I was simply stating a fact within my knowledge and nothing more."
Taken out of context, I don't necessarily see anything wrong with that. Before the quoted question was put to him, was he in fact advocating evasion of the procedural rules, or was he simply stating a point of fact within his knowledge? If he tried to pass off a soapbox exhortation as a statement of fact, that would be weasel language. In other words, a lie, since a mere statement of fact is NOT what it was intended to be. OTOH if it was in fact just a statement of fact, but everyone else was ASSUMING he intended it to be used as an exhortation to avoid the rules when he had no such intention, it is a fine example of how lawyers should and do use precise words to clarify what they mean when a possible ambiguity arises.
> The best word I can find to describe this style of expression is
> "disingenuous". Like I said, when it's my lawyer who's using it, I'm
> all for it!
Lawyers didn't invent being disingenuous; AFAIK that started with Adam and Eve and the apple tree. However, due to our training and skill in use of words, some of us who occasionally visit the Dark Side have come close to perfecting the art. I wouldn't be so flippantly quick to applaud a lawyer (on my side) who used unclear and ambiguous language unless it was a situation, such as international peace negotiations, divorce mediation or the like, that inevitably called for language leaving some wiggle room that would preserve some dignity for both sides in order to make progress toward a settlement. In just about any other legal context I can think of, ambiguity serves no useful purpose for anybody, and outright lying (which both of Mark's examples may be, or may not be, depending on context) is improper and counterproductive since, as almost always happens, the truth will out, at which point the liar or weasel is the one who will have egg on his face.
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Sexual harrassment at work
On Jun 10, 7:56 am, dhmei...@comcast.net wrote:
> I just found out that someone at my wife's company has been sexually
> harassing my wife for quite some time. I recently found out and was
> told that he had been sending emails of a blatant sexual nature to my
> wife.
I'm unclear from your post whether this is still going on, and whether the harassing individual is still employed in any capacity at your wife's company. Also unclear whether he was her supervisor or just a co-worker who was trying to make a pass at her. Note that trying to date or have a titillating conversation with someone from the office is NOT per se illegal, although if she ever told him his attentions bothered her and asked him to stop, his CONTINUED approaches of a sexual nature COULD be seen as the cause or.contribute to creating a sexually harassing environment, especially if management knew about the continued harassment and did nothing to stop it. Generally to be a form of illegal discrimination, sexual harassment has to be something pervasive that management either encourages or tolerates; the company is not liable simply because a fellow co-worker makes occasional sexually suggestive comments.
> Ok now for some background, her previous supervisor knew of this
> harassment and told her directly to not contact human resources or any
> other supervisor about this harassment and to just "toughen up"
That advice, in itself, may be an independent grounds for claiming harassment, either directly or if seen as a form of adversely changing the terms and conditions of her employment in retaliation for her having made a complaint (a bit of a stretch, that latter, but basically the argument would be the supervisor deprived your wife of her right to complain to HR by telling her not to do so, apparently backed up with some implied threat that would kick in if she did). She still should have gone to HR with her concerns, however, if her immediate supervisor refused to act. The law requires an employment discrimination claimant to exhaust all internal procedures provided by the company to resolve the issue without success, before the matter will be considered an "adverse employment action" by the employer that gives her the right to make an EEOC complaint and then (after exhausting her governmental administrative remedies as well as those provided by the company's internal policy) to sue.
> having read some of the emails they are not even close to being
> boderline, they are graphic!
We'll take your word for it. What matters is whether they created an oppressive work environment that adversely affected your wife's employment, with the knowledge and (tacit or explicit) approval of management.
> Some additional info
>
> When this started this company was an independent private corporation
> which was then purchased by another company. (Purchased about a year
> ago)
That should make no difference to the potential liability. The successor corporation takes over the duties and liabilitieis of its predecessor in that regard. And if the harassment is still going on, the new company is directly liable for what is still going on now.
> Also this supervisor who told my wife not to do anything about this
> left the company about 6 months ago for another company.
Was the underlying harassment by the office Lothario still going on after the supervisor left? The fact that the complacent supervisor was let go or fired is probably a good thing for the company's defense and neutral at best for your wife unless the harassment is still going on even after that supervisor left.
> My question deals with the former supervisor, is there any recourse
> that can be taken against the former supervisor?
Possibly, but why are you limiting your question to that? If your wife feels she suffered any adverse consequences at work as a result of the harassment, and esp. if it is still going on unabated, she should consult a local employment-law practitioner immediately since the initial EEOC or local-agency complaint filing deadlines are often quite short.
> As she was the
> reason my wife was extremely reluctant to come forward with this until
> now.
Understood. But now, esp. if it's still going on, she should (1) report it to her new supervisor, and (2) if that person fails to take sufficient action, report it to HR, and (3) report it to her union rep if she has one, and (4) make an appointment for an initial consultation with a lawyer, if she has suffered serious consequences as a result of the harassment and/or if it is still going on and she wants to be able to force it to stop.
> BTW the parent company has taken action against this individual
That's good for your wife, but not so good for her case, since it shows management DID take appropriate action when they became aware of the harassment.
> Oh yes one more question, should my wife still file complaints with
> the federal and state Equal Employment Opportunity Commission even
> though the company has taken action?
She should consult a lawyer first, and soon, and ask him or her that question. The lawyer will probably want to help her draft the EEOC complaint to make sure it provides an adequate basis for government investigation and possible suit. If your wife does this on her own and screws it up, it could ruin an otherwise meritorious case.
Secondly, keep in mind that, following the lead set by the Supreme Court, the various federal circuit courts of appeal have taken a much harder stance in recent years on recognizing claims of sexual harassment in the civilian workplace. Here in MD, where the ultra-conservative Fourth Circuit decisions govern, it is almost impossible to present a successful sexual harassment claim unless it's for something as blatant as the CEO "bench-testing" all the female employees on the couch in his office. Merely suggestive emails from a low-level co-worker, even graphic ones, are small potatoes unless they are so pervasive that she finds it impossible to continue working there. Expect some heavy cross-examination if her case ever does get to the point of a suit, regarding why she stayed on if she found the emails so offensive and inescapable as to give rise to a harassment claim; the implication being, as her former supervisor said, just to "toughen up" and delete them unread. No one was forcing her to respond or even pay attention to Romeo's blandishments, the company's lawyer will argue.
The other big thing to consider, which you do not mention at all, is the matter of damages and remedies. If the harassment is still going on, and especially if your wife is not the only female employee who is being hit on pervasively, it could be worthwhile to seek an injunction to bar such conduct in the future in that workplace, even if she suffered no specific harm and no financial loss as a result. But keep in mind that your wife is NOT going to get passels of money out of suing her company or her former supervisor, unless as a result of how the situation came down, she got fired, or got treated so badly that she had to quit (which is considered a "constructive termination" just as though she had been directly fired) or if she got demoted, denied promotion, shunted to the desk in the basement, or otherwise specifically harmed. And even if she got fired, if she found another equal or better job soon after, her damages are going to be minimal. Just something to keep in mind so she doesn't get stars in her eyes. And maybe bottom line is, unless she feels there is something she can do to help OTHER women employees remaining at the company, maybe her best bet IS to quit and go work someplace else that will treat her better. It's a free country.
Good luck,
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> I just found out that someone at my wife's company has been sexually
> harassing my wife for quite some time. I recently found out and was
> told that he had been sending emails of a blatant sexual nature to my
> wife.
I'm unclear from your post whether this is still going on, and whether the harassing individual is still employed in any capacity at your wife's company. Also unclear whether he was her supervisor or just a co-worker who was trying to make a pass at her. Note that trying to date or have a titillating conversation with someone from the office is NOT per se illegal, although if she ever told him his attentions bothered her and asked him to stop, his CONTINUED approaches of a sexual nature COULD be seen as the cause or.contribute to creating a sexually harassing environment, especially if management knew about the continued harassment and did nothing to stop it. Generally to be a form of illegal discrimination, sexual harassment has to be something pervasive that management either encourages or tolerates; the company is not liable simply because a fellow co-worker makes occasional sexually suggestive comments.
> Ok now for some background, her previous supervisor knew of this
> harassment and told her directly to not contact human resources or any
> other supervisor about this harassment and to just "toughen up"
That advice, in itself, may be an independent grounds for claiming harassment, either directly or if seen as a form of adversely changing the terms and conditions of her employment in retaliation for her having made a complaint (a bit of a stretch, that latter, but basically the argument would be the supervisor deprived your wife of her right to complain to HR by telling her not to do so, apparently backed up with some implied threat that would kick in if she did). She still should have gone to HR with her concerns, however, if her immediate supervisor refused to act. The law requires an employment discrimination claimant to exhaust all internal procedures provided by the company to resolve the issue without success, before the matter will be considered an "adverse employment action" by the employer that gives her the right to make an EEOC complaint and then (after exhausting her governmental administrative remedies as well as those provided by the company's internal policy) to sue.
> having read some of the emails they are not even close to being
> boderline, they are graphic!
We'll take your word for it. What matters is whether they created an oppressive work environment that adversely affected your wife's employment, with the knowledge and (tacit or explicit) approval of management.
> Some additional info
>
> When this started this company was an independent private corporation
> which was then purchased by another company. (Purchased about a year
> ago)
That should make no difference to the potential liability. The successor corporation takes over the duties and liabilitieis of its predecessor in that regard. And if the harassment is still going on, the new company is directly liable for what is still going on now.
> Also this supervisor who told my wife not to do anything about this
> left the company about 6 months ago for another company.
Was the underlying harassment by the office Lothario still going on after the supervisor left? The fact that the complacent supervisor was let go or fired is probably a good thing for the company's defense and neutral at best for your wife unless the harassment is still going on even after that supervisor left.
> My question deals with the former supervisor, is there any recourse
> that can be taken against the former supervisor?
Possibly, but why are you limiting your question to that? If your wife feels she suffered any adverse consequences at work as a result of the harassment, and esp. if it is still going on unabated, she should consult a local employment-law practitioner immediately since the initial EEOC or local-agency complaint filing deadlines are often quite short.
> As she was the
> reason my wife was extremely reluctant to come forward with this until
> now.
Understood. But now, esp. if it's still going on, she should (1) report it to her new supervisor, and (2) if that person fails to take sufficient action, report it to HR, and (3) report it to her union rep if she has one, and (4) make an appointment for an initial consultation with a lawyer, if she has suffered serious consequences as a result of the harassment and/or if it is still going on and she wants to be able to force it to stop.
> BTW the parent company has taken action against this individual
That's good for your wife, but not so good for her case, since it shows management DID take appropriate action when they became aware of the harassment.
> Oh yes one more question, should my wife still file complaints with
> the federal and state Equal Employment Opportunity Commission even
> though the company has taken action?
She should consult a lawyer first, and soon, and ask him or her that question. The lawyer will probably want to help her draft the EEOC complaint to make sure it provides an adequate basis for government investigation and possible suit. If your wife does this on her own and screws it up, it could ruin an otherwise meritorious case.
Secondly, keep in mind that, following the lead set by the Supreme Court, the various federal circuit courts of appeal have taken a much harder stance in recent years on recognizing claims of sexual harassment in the civilian workplace. Here in MD, where the ultra-conservative Fourth Circuit decisions govern, it is almost impossible to present a successful sexual harassment claim unless it's for something as blatant as the CEO "bench-testing" all the female employees on the couch in his office. Merely suggestive emails from a low-level co-worker, even graphic ones, are small potatoes unless they are so pervasive that she finds it impossible to continue working there. Expect some heavy cross-examination if her case ever does get to the point of a suit, regarding why she stayed on if she found the emails so offensive and inescapable as to give rise to a harassment claim; the implication being, as her former supervisor said, just to "toughen up" and delete them unread. No one was forcing her to respond or even pay attention to Romeo's blandishments, the company's lawyer will argue.
The other big thing to consider, which you do not mention at all, is the matter of damages and remedies. If the harassment is still going on, and especially if your wife is not the only female employee who is being hit on pervasively, it could be worthwhile to seek an injunction to bar such conduct in the future in that workplace, even if she suffered no specific harm and no financial loss as a result. But keep in mind that your wife is NOT going to get passels of money out of suing her company or her former supervisor, unless as a result of how the situation came down, she got fired, or got treated so badly that she had to quit (which is considered a "constructive termination" just as though she had been directly fired) or if she got demoted, denied promotion, shunted to the desk in the basement, or otherwise specifically harmed. And even if she got fired, if she found another equal or better job soon after, her damages are going to be minimal. Just something to keep in mind so she doesn't get stars in her eyes. And maybe bottom line is, unless she feels there is something she can do to help OTHER women employees remaining at the company, maybe her best bet IS to quit and go work someplace else that will treat her better. It's a free country.
Good luck,
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
Tourist visa denied
On Jun 13, 7:12 am, vad...@gmail.com wrote:
> Hello,
> I am a US citizen. My wife is a Green Card holder. She invited her
> father to come and visit us back in December. So he did. We wanted to
> do the same for her mother but mother got her visa denied (in Eastern
> Europe). I believe this is unfair and I demand justice.
Unfortunately, the operative word for issuance of entry visas for non-citizens such as your mom-in-law is "unfair", especially in these days of post-9/11 paranoia and security clampdowns on anybody with even a tenuous connection to "terrorism" or to a region of the globe that is experiencing "terrorism." Which these days is just about everyone and everywhere.
Even before that, however, people from different parts of the world were treated differently by USA immigration law, and that is perfectly legal. The Congress can determine, by statute, how many people to let in from which countries, and for some countries, the quota is zero or close to it, while other countries have a relatively open door. This applies to tourist visas as well as to permanent residency (green card) permits. In addition, particular individuals can be banned from entry into USA if the government, with or without cause, feels they may present a danger or otherwise be undesirable. I am aware of more than one instance where, e.g. distinguished scholars were banned entrance to USA to attend academic gatherings because the government didn't like the views they had expressed.
You say nothing in your post about what reasons were given for refusal to let your wife's mom into the USA, and that could make a big difference. If there is some genuine reason why they won't let her in, all of your efforts may be to no avail, and then there would be nothing you could legally do to have a court force the agency to change their mind if their classification has a rational basis and serves a legitimate governmental purpose.
> what I can do to invite my mother-in-law. Can I contact the
> Department of State or should I contact the counselor of US embassy in
> Europe directly?
You could do all of the above, and in addition contact your congressional representative and both of your senators. Not that it is guaranteed to do any good, but there is no cookbook for this; you've got to be assertive because you're dealing with an inward-looking and fearful bureaucracy at Homeland Security and national policy. I don't have a roadmap for you, but it probably makes sense to start with agencies relatively near your home (to save on long distance phone charges, or so you can go there in person and walk it through) and all I can tell you is that it will probably take a lot of time and effort and persistence to get anything to change. Start calling. and keep calling different offices; that's how you will learn more, and find out who can help you and who will just pass the buck. Good luck,
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
> Hello,
> I am a US citizen. My wife is a Green Card holder. She invited her
> father to come and visit us back in December. So he did. We wanted to
> do the same for her mother but mother got her visa denied (in Eastern
> Europe). I believe this is unfair and I demand justice.
Unfortunately, the operative word for issuance of entry visas for non-citizens such as your mom-in-law is "unfair", especially in these days of post-9/11 paranoia and security clampdowns on anybody with even a tenuous connection to "terrorism" or to a region of the globe that is experiencing "terrorism." Which these days is just about everyone and everywhere.
Even before that, however, people from different parts of the world were treated differently by USA immigration law, and that is perfectly legal. The Congress can determine, by statute, how many people to let in from which countries, and for some countries, the quota is zero or close to it, while other countries have a relatively open door. This applies to tourist visas as well as to permanent residency (green card) permits. In addition, particular individuals can be banned from entry into USA if the government, with or without cause, feels they may present a danger or otherwise be undesirable. I am aware of more than one instance where, e.g. distinguished scholars were banned entrance to USA to attend academic gatherings because the government didn't like the views they had expressed.
You say nothing in your post about what reasons were given for refusal to let your wife's mom into the USA, and that could make a big difference. If there is some genuine reason why they won't let her in, all of your efforts may be to no avail, and then there would be nothing you could legally do to have a court force the agency to change their mind if their classification has a rational basis and serves a legitimate governmental purpose.
> what I can do to invite my mother-in-law. Can I contact the
> Department of State or should I contact the counselor of US embassy in
> Europe directly?
You could do all of the above, and in addition contact your congressional representative and both of your senators. Not that it is guaranteed to do any good, but there is no cookbook for this; you've got to be assertive because you're dealing with an inward-looking and fearful bureaucracy at Homeland Security and national policy. I don't have a roadmap for you, but it probably makes sense to start with agencies relatively near your home (to save on long distance phone charges, or so you can go there in person and walk it through) and all I can tell you is that it will probably take a lot of time and effort and persistence to get anything to change. Start calling. and keep calling different offices; that's how you will learn more, and find out who can help you and who will just pass the buck. Good luck,
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
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